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Perry v. State

Court of Appeals of Mississippi

October 8, 2013

JAMES CODY PERRY A/K/A JAMES C. PERRY A/K/A CODY PERRY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 1057

COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/29/2012. TRIAL JUDGE: HON. SAMAC S. RICHARDSON. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.

FOR APPELLANT: JOSHUA A. TURNER.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

BEFORE LEE, C.J., BARNES AND ISHEE, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. ROBERTS, J., NOT PARTICIPATING.

OPINION

Page 1058

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

LEE, C.J.:

[¶1] James Cody Perry pleaded guilty to attempted statutory rape of a thirteen-year-old girl. After being sentenced, Perry filed a petition for post-conviction relief (PCR), which was subsequently denied. He now appeals claiming that the circuit judge was impermissibly involved in his guilty-plea negotiations. Perry asserts that his guilty plea was not knowing, intelligent, and voluntary because of this involvement. Finally, Perry claims his guilty plea should be set aside because the prosecution failed to provide him with the 2007 incident report.

FACTS AND PROCEDURAL HISTORY

[¶2] In May 2008, Perry was indicted for the statutory rape of a thirteen-year-old girl. Perry faced a potential sentence of twenty years to life in the custody of the Mississippi Department of Corrections (MDOC). Miss. Code Ann. § 97-3-65(3)(c) (Supp. 2012). Assistant District Attorney (ADA) Lauren Harless tentatively agreed to reduce Perry's charge to attempted statutory rape, which would carry a maximum sentence of ten years. See Miss. Code Ann. § 97-1-7 (Rev. 2006).

[¶3] Because Perry wanted to avoid incarceration, Perry's attorney, Michael Reed, sought assurances that Circuit Judge Prentiss Harrell would not sentence Perry to a term of incarceration. Reed, with ADA Harless on the line, telephoned Judge Harrell and explained the circumstances. There was evidence that Judge Harrell said he was " 99 percent" certain he would not incarcerate Perry if Perry pleaded guilty to attempted statutory rape. However, Judge Harrell clearly indicated that this was contingent on Perry's presentence investigation report.

[¶4] That same day, Perry filed a guilty-plea petition. He swore that he had not been promised any particular sentence. He also acknowledged the range of possible sentences that he could receive, including the minimum and maximum sentences for attempted statutory rape.

[¶5] The next day at the hearing on Perry's guilty-plea petition, Judge Harrell explained that he had the authority to sentence Perry within the statutory restrictions that apply to attempted statutory rape. Perry's guilty plea was described as a " best-interest" guilty plea under Alford v. North Carolina, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Again, Perry swore that he had not been promised any particular sentence. Judge Harrell accepted Perry's guilty ...


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